Here, the city's policy is to “allow an individual (e.g. the Plaintiff) to sell (his or anyone else's) paintings in the CITY's ‘typical’ parks if the painting offered for sale conveys a religious, political, philosophical or ideological ‘message’.” (Opp'n (# 53) at 5.) While the city claims it “does not make any inquiry into the content of the ‘message,’ ” a person seeking to sell any goods or merchandise as protected speech must obtain a determination from the city's staff that his goods or merchandise are in fact protected speech. (
Id. at 5–6.) The city's officials apparently have been instructed to obtain a legal opinion before granting or denying any request seeking such a determination. (
Id. at 6.) The standard used by the city to determine whether particular goods or merchandise present “a religious, political, philosophical or ideological message is based on common sense and the plain meanings of the four categories.” (
Id. at 7.) Defendant explains that “[s]ome messages will be patently displayed on goods and merchandise, while other messages will be derived from meanings or words or symbols (e.g., the symbol of a whale for Greenpeace's ‘save the whales' environmental movement).” (
Id.) According to defendant, “[t]here are no limiting criteria or standards, which could result in incorrect determinations.” As such, defendant in effect has conceded that its officials have nearly unbridled discretion in determining whether a particular work is protected by the First Amendment. Because the city has not delineated any objective standards, its officials could easily interpose their personal judgments in a manner inimical to the protection of First Amendment rights. Although defendant has claimed that common sense and the plain meaning of the categories will guide the decision makers, this can hardly be considered narrow, objective, and definite criteria. Not only are defendant's standards imprecise, they are admittedly non-existent, making the possibility of discriminatory enforcement very real indeed.
See Gentile, 501 U.S. at 1051, 111 S.Ct. 2720. Moreover, as discussed above, defendant has demonstrated its intention to apply the Ninth Circuit's protected merchandise standard in a narrow, particularized manner that will certainly restrict First Amendment protected expression. As such, this court finds that defendant's pre-approval scheme operates as an unconstitutional prior restraint on speech.